Volume Ii Part 26 (1/2)
[Sidenote: Vessels in Distress.]
-- 189. Instances have occurred when enemy vessels which were forced by stress of weather to seek refuge in a belligerent's harbour were granted exemption from seizure.[376] Thus, when in 1746, during war with Spain, the _Elisabeth_, a British man-of-war, was forced to take refuge in the port of Havanna, she was not seized, but was offered facility for repairing damages, and furnished with a safe-conduct as far as the Bermudas. Thus, further, when in 1799, during war with France, the _Diana_, a Prussian merchantman, was forced to take refuge in the port of Dunkirk and seized, she was restored by the French Prize Court. But these and other cases have not created any rule of International Law whereby immunity from attack and seizure is granted to vessels in distress, and no such rule is likely to grow up, especially not as regards men-of-war and such merchantmen as are easily convertible into cruisers.
[Footnote 376: See Ortolan, II. pp. 286-291; Kleen, II. -- 210, pp.
492-494.]
[Sidenote: Immunity of Hospital and Cartel s.h.i.+ps.]
-- 190. According to the Hague Convention, which adapted the principles of the Geneva Convention to warfare on sea, hospital s.h.i.+ps are inviolable, and therefore may be neither attacked nor seized; see below in ---- 204-209. Concerning the immunity of cartel s.h.i.+ps, see below in -- 225.
[Sidenote: Immunity of Mail-boats and of Mail-bags.]
-- 191. No general rule of International Law exists granting enemy mail-boats immunity from attack and seizure, but the several States have frequently stipulated such immunity in the case of war by special treaties.[377] Thus, for instance, Great Britain and France by article 9 of the Postal Convention of August 30, 1860, and Great Britain and Holland by article 7 of the Postal Convention of October 14, 1843, stipulated that all mail-boats navigating between the countries of the parties shall continue to navigate in time of war between these countries without impediment or molestation until special notice be given by either party that the service is to be discontinued.
[Footnote 377: See Kleen, II. -- 210, pp. 505-507.]
Whereas there is no general rule granting immunity from capture to enemy mail-boats, enemy _mail-bags_ do, according to article 1 of Convention XI., enjoy the privilege of such immunity, for it is there enacted that the postal correspondence of neutrals or belligerents, whether official or private in character, which may be found on board a neutral[378] or enemy s.h.i.+p at sea, is inviolable, and that, in case the s.h.i.+p is detained, the correspondence is to be forwarded by the captor with the least possible delay. There is only one exception to this rule of article 1, for correspondence destined to or proceeding from a blockaded port does not enjoy the privilege of immunity.
[Footnote 378: See below, ---- 319 and 411.]
It must be specially observed that postal correspondence, and not parcels sent by parcel post, are immune from capture.
III
APPROPRIATION AND DESTRUCTION OF ENEMY MERCHANTMEN
Hall, ---- 149-152, 171, 269--Lawrence, ---- 183-191--Westlake, II.
pp. 156-160--Phillimore, III. ---- 345-381--Twiss, II. ---- 72-97--Halleck, II. pp. 362-431, 510-526--Taylor, ---- 552-567--Wharton, III. -- 345--Wheaton, ---- 355-394--Moore, VII. ---- 1206-1214--Bluntschli, ---- 672-673--Heffter, ---- 137-138--Geffcken in Holtzendorff, IV. pp. 588-596--Ullmann, -- 189--Bonfils, Nos.
1396-1440--Despagnet, Nos. 670-682--Pradier-Fodere, VIII. Nos.
3179-3207--Rivier, II. -- 66--Calvo, IV. ---- 2294-2366, V. ---- 3004-3034--Fiore, III. Nos. 1426-1443, and Code, Nos.
1693-1706--Martens, II. ---- 125-126--Pillet, pp. 342-352--Perels, ---- 36, 55-58--Testa, pp. 147-160--Valin, _Traite des prises_, 2 vols. (1758-60), and _Commentaire sur l'ordonnance de 1681_, 2 vols. (1766)--Pistoye et Duverdy, _Traite des prises maritimes_, 2 vols. (1854-1859)--Upton, _The Law of Nations affecting Commerce during War_ (1863)--Boeck, Nos. 156-209, 329-380--Dupuis, Nos.
96-149, 282-301--Bernsten, -- 8--Marsden, _Early Prize Jurisdiction and Prize Law in England_ in _The English Historical Review_, XXIV. (1909), p. 675; XXV. (1910), p. 243; XXVI. (1911) p.
34--Roscoe, _The Growth of English Law_ (1911), pp. 92-140. See also the literature quoted by Bonfils at the commencement of No.
1396.
[Sidenote: Prize Courts.]
-- 192. It has already been stated above, in -- 185, that the capture of a private enemy vessel has to be confirmed by a Prize Court, and that it is only through the latter's adjudication that the vessel becomes finally appropriated. The origin[379] of Prize Courts is to be traced back to the end of the Middle Ages. During the Middle Ages, after the Roman Empire had broken up, a state of lawlessness established itself on the High Seas. Piratical vessels of the Danes covered the North Sea and the Baltic, and navigation of the Mediterranean Sea was threatened by Greek and Saracen pirates. Merchantmen, therefore, a.s.sociated themselves for mutual protection and sailed as a merchant fleet under a specially elected chief, the so-called Admiral. They also occasionally sent out a fleet of armed vessels for the purpose of sweeping pirates from certain parts of the High Seas. Piratical vessels and goods which were captured were divided among the captors according to a decision of their Admiral.
During the thirteenth century the maritime States of Europe themselves endeavoured to keep order on the Open Sea. By-and-by armed vessels were obliged to be furnished with Letters Patent or Letters of Marque from the Sovereign of a maritime State and their captures submitted to the official control of such State as had furnished them with their Letters.
A board, called the Admiralty, was inst.i.tuted by maritime States, and officers of that Board of Admiralty exercised control over the armed vessels and their captures, inquiring in each case[380] into the legitimation of the captor and the nationality of the captured vessel and her goods. And after modern International Law had grown up, it was a recognised customary rule that in time of war the Admiralty of maritime belligerents should be obliged to inst.i.tute a Court[381] or Courts whenever a prize was captured by public vessels or privateers in order to decide whether the capture was lawful or not. These Courts were called Prize Courts. This inst.i.tution has come down to our times, and nowadays all maritime States either const.i.tute permanent Prize Courts, or appoint them specially in each case of an outbreak of war. The whole inst.i.tution is essentially one in the interest of neutrals, since belligerents want to be guarded by a decision of a Court against claims of neutral States regarding alleged unjustified capture of neutral vessels and goods. The capture of any private vessel, whether _prima facie_ belonging to an enemy or a neutral, must, therefore, be submitted to a Prize Court. Article 1 of Convention XII. (as yet unratified) of the Second Peace Conference now expressly enacts the old customary rule that ”the validity of the capture of a merchantman or its cargo, when neutral or enemy property is involved, is decided before a Prize Court.”
It must, however, be emphasised that the ordinary Prize-Courts are not International Courts, but National Courts inst.i.tuted by Munic.i.p.al Law, and that the law they administer is Munic.i.p.al Law,[382] based on custom, statutes, or special regulations of their State. Every State is, however, bound by International Law to enact only such statutes and regulations[383] for its Prize Courts as are in conformity with International Law. A State may, therefore, instead of making special regulations, directly order its Prize Courts to apply the rules of International Law, and it is understood that, when no statutes are enacted or regulations are given, Prize Courts have to apply International Law. Prize Courts may be inst.i.tuted by belligerents in any part of their territory or the territories of allies, but not on neutral territory. It would nowadays const.i.tute a breach of neutrality on the part of a neutral State to allow the inst.i.tution on its territory of a Prize Court.[384]
[Footnote 379: I follow the excellent summary of the facts given by Twiss, II. ---- 74-75, but Marsden's articles in _The English Historical Review_, XXIV. (1909), p. 675, XXV. (1910), p. 243, XXVI. (1911), p. 34, must likewise be referred to.]
[Footnote 380: The first case that is mentioned as having led to judicial proceedings before the Admiral in England dates from 1357; see Marsden, _loc. cit._ XXIV. (1909), p. 680.]
[Footnote 381: In England an Order in Council, dated July 20, 1589, first provided that all captures should be submitted to the High Court of Admiralty; see Marsden, _loc. cit._ XXIV. (1909), p. 690.]